Attorney General Supports Local Health Orders

Wisconsin’s top prosecutor has weighed in on the legality of local public health orders following the Wisconsin Supreme Court‘s voiding of the state’s “Safer at Home” order.

The issue became a hot topic Friday as Kenosha and Brown counties rescinded their orders citing concerns about their legality.

Attorney General Josh Kaul, a Democrat, provided his opinion at the request of Outagamie County Executive Tom Nelson. Outagamie, home to Appleton and other Fox Valley communities, borders Brown County, site of the state’s largest per-capita COVID-19 outbreak. The Outagamie County public health officer issued an order Thursday effectively maintaining the voided state order through May 20th.

The Attorney General began his interim opinion by noting that the Supreme Court case dealt with the powers of the Department of Health Services Secretary-designee Andrea Palm and not a separate statute that addresses local health powers. “Because the court decision addressed a different statute applicable to a state agency, and not the statute applicable to local authorities, the Palm decision is not directly controlling on powers under the latter statute,” he wrote.

Kaul did caution that officials should carefully consider criminal sanctions, given that the court centered its opinion on Palm overstepping her authority in prescribing such sanctions without going through the state rulemaking process. “It is advisable to limit enforcement under Wis. Stat. § 252.03 to ordinances or administrative enforcement,” says the opinion. The Attorney General also noted that the need to go to the rulemaking process is not prescribed in the statute governing local public health orders.

Kaul also provided guidance on how to structure the local orders. “The local authority should ensure that any measures that direct people to stay at home, forbid certain travel, or close certain businesses speak specifically to the local authority’s statutory power to ‘prevent, suppress and control communicable diseases’ and ‘forbid public gatherings when deemed necessary to control outbreaks or epidemics,'” he wrote.

The interim opinion is not final. It has been posted on the Department of Justice website for public comment.

“Opinions of the attorney general typically provide guidance when confusion exists about the meaning of a statute and Wisconsin appellate courts have not yet definitively answered the question. Wisconsin courts do not have any obligation to follow an interpretation provided by an opinion of the attorney general, but they often do. As the Wisconsin Court of Appeals has written, ‘Well-reasoned attorney general’s opinions have persuasive value when a court later addresses the meaning of the same statute,” said the Attorney General in a press release announcing the opinion.

How did Nelson react to Kaul’s advice? He rescinded the county’s order Friday evening.

“The order was intended as a placeholder for a GOP plan. They sued for time & rule making authority. They got both. I spoke with [Governor Tony Evers] this am & it was crystal clear that [the Legislature] had zero interest in doing anything,” said Nelson, a former Democrat state assembly member, in a tweet. Nelson’s decision came after the City of Appleton, the county seat, rescinded its own order. Winnebago and Calumet counties, located to the south of Outagamie, also rescinded their orders.

Outagamie County public health officer Mary Dorn issued a statement recommending individuals continue to practice social distancing. “We have reviewed our local data, including the low positive-test result rates from our tri-county testing effort this week and we’ve consulted with our local partners—including the chamber of commerce and law enforcement and concluded that the recommendations we are issuing today are in the best interest of the community,” Dorn said.

Milwaukee Mayor Tom Barrett backed the Milwaukee order on Friday afternoon. “Consulting with our City Attorney, we are very confident we have strong legal underpinnings for the actions we are taking,” he said in a press conference. “I am not naive enough to believe that there is no politics here,” said Barrett. “You can see communities clearly making decisions driven by political considerations.”

Cudahy is the lone Milwaukee County community to rescind its order.